Virgil once famously claimed ownership of the sun to demonstrate the absurdity of serious assertions made by a number of charlatans to ownership of lunar territory (Dennis Hope) or the entire Eros asteroid (Greg Nemitz). Virgil’s point was “to show how ridiculous a property rights system in outer space would be if it were to be based solely on claim unsubstantiated by any actual possession.”

I’m looking forward to reading Virgil’s book–and to writing a proper review. For now, I’ll just say that I think Virgil and I see eye-to-eye on three key premises (something of a rarity among space lawyers on the ultra-contentious issue of property rights):

The Outer Space Treaty of 1967 prohibits nations from appropriating territory in space and also prohibits individuals from asserting any territorial claims (generally accepted) except to a narrowly-limited area under actual use (not accepted by all space lawyers).

The Outer Space Treaty, properly understood, does not bar claims to ownership of movable objects such as extracted resources or even (if they can be moved in a meaningful way) entire asteroids or comets.

Securing such property rights is essential to the economic development of space.

Here are a few choice excerpts from Virgil’s new book on the big picture of property rights in space:

Outer space needs to be spared the painful experience of the former Eastern Block. Despite the noble ideals of equity and care for the have-nots, the CHM paradigm has more faults than merits. A refutation of the Common Heritage principle does not mean, however, that the developing world will, or should, be left behind in the space era. China, India and Brazil are living proofs that a developing country can, through its own effort, join the spacefaring club. Instead of freeloading on the efforts of the older spacefarers, the have-nots should pool their meagre financial resources into a common space agency or into regional ones, and proceed at exploiting the riches of outer space for themselves. The rallying cry of Marxism – “Proletarians of all countries, unite; you have nothing to lose but your chains” should evolve into “Countries of the world unite – you have nothing to lose but the chains of gravity”. The skies are open. “

…

The frontier paradigm has proven its worth on our planet, and it most likely will do so in the extraterrestrial realms. Homesteading is likely to transform the lunar desert in the same manner as it transformed the 19th Century United States. Space is indeed a new frontier calling for individualism rather than collectivism, and its challenges need to be addressed with a legal regime favourable to property rights. Such a regime is seen by many authors as not only useful, but also as the only means of opening the extraterrestrial realms to settlement, given the reluctance of most industrialists to invest money in an endeavour without having the security that they will enjoy the benefits. It may also occur that a minority of investors, with a bigger tolerance to risk, would adopt an anarcho-capitalist approach and “cross the Alleghenies” without backing from a sovereign State.

Given the abundance of extraterrestrial resources, it would be nonsensical to forbid their private appropriation. Securing property rights would be a small price to pay, and more beneficial to humankind, compared to the alternative of keeping the extraterrestrial realms undeveloped. The practical arguments against the Frontier paradigm may have merit, but the issues raised can be tackled. The ideological arguments, nonetheless, are emotional rather than rational.

Whereas the frontier paradigm is outlawed in the current incarnation of the international law of outer space, law is a dynamic phenomenon and it may evolve towards a regime supportive of property rights in outer space. A shift from the res publica approach may be in the cards, given the official support of the Aldridge commission for property rights. Until this shift happens, the non-appropriation principle remains nonetheless the lex lata in the extraterrestrial realms.

Interesting article, I've seen companies selling acres on the moon for years. If i recall, last I looked, all the good moon real-estate was already sold. I'm sure none of them had any true legal basis for selling spots on the moon though and likely are in jail today.